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Unfair Dismissal

Unfair dismissal generally occurs where a termination at the initiative of the Employer has been harsh, unjust or unreasonable, was not a case of a genuine redundancy and inconsistent with the Small Business Fair Dismissal Code (if applicable).

In determining whether the termination was harsh, unjust or unreasonable, the Fair Work Commission may take into account a number of factors including but not limited to:

whether there was a valid reason for the termination;

whether the Employee was notified of that reason and given an opportunity to respond;

if the termination related to unsatisfactory performance by the Employee, whether the Employee had previously been warned about that unsatisfactory performance;

whether there may be another suitable role within the organisation that the Employee could be redeployed to; and

the size of the Employer’s business, or the absence of dedicated human resource management specialists.

In determining whether there was a genuine redundancy situation, the Fair Work Commission gives consideration to whether changes in operational requirements by the Employer led to the Employee’s functions being no longer required to be performed by any other person and whether the Employer has complied with its obligations under any applicable terms and conditions of employment with the Employee.

A claim for unfair dismissal must be made within 21 days of the termination coming into effect. However, there are limits upon who may make an application for unfair dismissal (i.e. casual workers may not be eligible to make an unfair dismissal claim).

Once a claim is lodged, the Employer will be informed of the claim by the Fair Work Commission and must respond within 7 days. Employers may also apply to dismiss the application for want of jurisdiction or because the application as frivolous, vexatious or lacking in substance.

The matter will then be listed for a telephone Conciliation Conference where an attempt will be made to settle the matter by negotiation and agreement. If the matter does not settle at the Conciliation Conference, the Employee may then elect to proceed with the matter to a final hearing.

If you would like to discuss this or other issues that might arise in the context of your employment or organisation, please contract our Employment Law team.

Frequently Asked Questions:

Can I obtain compensation for shock, hurt or distress?

No, not when making a claim for unfair dismissal through the Fair Work Commission.

Australia’s national employment law, the Fair Work Act 2009 (Cth) explicitly states the Fair Work Commission must not order compensation for shock, distress or humiliation, or other similar hurt, caused by the manner of the dismissal.

The Fair Work Commission does not have any discretionary ability to vary this restriction in an unfair dismissal claim.

I have been made redundant, can this be an unfair dismissal?

Yes, a redundancy can be deemed an unfair dismissal in certain situations. Every situation will be decided on the facts surrounding the redundancy and whether there are modern award or enterprise agreement provisions requiring your employer to consult with staff prior to the redundancy.

You should gather as much evidence as you can to support your case.

Whether you receive any redundancy pay will be determined by your length of service,

Note that if unfair dismissal is found to have occurred, then any redundancy payout may be offset against the compensation received for the unfair dismissal.

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